PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

________________

No. 16-3266

CONSTITUTION PARTY OF PENNSYLVANIA; GREEN PARTY OF PENNSYLVANIA; LIBERTARIAN PARTY OF PENNSYLVANIA; JOE MURPHY; JAMES N. CLYMER; CARL J. ROMANELLI; THOMAS R. STEVENS; KEN KRAWCHUK, Appellants

v.

* PEDRO A. CORTES; JONATHAN M. MARKS
* (Pursuant to Fed. R. App. P. 43(c))

________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania (D. C. Civil Action No. 5-12-cv-02726 ) District Judge: Honorable Lawrence F. Stengel

Argued on March 22, 2017

Before: SMITH, Chief Judge, JORDAN and ROTH, Circuit Judges2 (Opinion filed : December 13, 2017 )

Oliver B. Hall , Esq. (Argued) Center for Competitive Democracy
1835 16 th Street N. W. , Suite 5 Washington, DC 20009

Counsel for Appellant s

Claudia M. Tesoro , Esq. (Argued) Office of Attorney General of Pennsylvania
21 South 12 th Street Philadelphia, PA 19107

Counsel for Appellee

________________

OPINION

________________

RO TH

, Circuit Judge3 Numerous individuals and groups, collectively known as the “Aspiring Parties,” 1 filed suit to enjoin the application of certain of Pennsylvania’s election laws, arguing that those laws were unconstitutional as applied to them. They prevailed . The District Court then entere d a permanent injunction

, imposing county

- based signature

- gathering requirements that the Aspiring Parties must meet in order to appear on the ballot. The Aspiring Parties appeal once more , arguing that those requirements are an unconstitutional vote dilution scheme in violation of the Equal Protection Clause of
the U.S. Constitution . We conclude that the record is inadequate to support the si gnature gathering requirements

. For that reason

, we will vacate the injunction and remand.

I. Factual and Procedural Background

In 2012, the Aspiring Parties filed suit under 42 U.S.C. § 1983 against the Secretary of the Commonwealth of Pennsylvania and the Commissioner of the Pennsylvania
Bureau of Commissi ons, Elections, and Legislation (the Commonwealth) in their official capacities. The Aspiring
Parties claimed that certain of Pennsylvania’s election laws
violated their First and Fourteenth Amendmen t rights.

1 Specifically, the Aspiring Parties consist of: the Constitution Party of Pennsylvania, the Green Party of Pennsylvania, and the Libertarian Party of Pennsylvania; their respective chairs Joe Murphy, Carl Romanelli, and Thomas Robert Stevens; James Clymer, a member of the Constitution Party; and Ken
Krawchu k, a former Libertarian Party candidate for the U.S.
Senate.4 A s we explained in greater detail in a prior opinion, political organizations

, which are not classified as “major parties” under Pennsylvania law 2 and which wish to plac e candidates on the ballot

, need to gather a considerable number of signatu res ; the validity of those signatures can be challenged. 3 A successful challenge may , under certain circumstances, result in an award of costs (which may be considerable). 4 The threat of being required to pay these high

costs has deterred some candidates from running for office

. 5

The Aspiring Parties ’ suit sought to e njoin these requirements. Initially, the case was dismissed for lack of standing, but we reversed on appeal. 6 Next, t he District Court held that the statutes were, in combination, unconst itutional as applied to the Aspiring Parties. 7 We affirmed and
remanded the case to the District Court. 8

On remand, the District Court requested that the Aspiring Parties and the Commonwealth each submit proposed orders which would remedy the constituti onal

2 Currently, only the Republican and Democratic Parties qualify as major parties

. 3 Constitution Party of Pennsylvania v. Cortes , 824 F.3d 386, 390 (3d Cir. 2016)

. 4 Id. at 391.

5 Id. at 392.

6 S ee Constitution Party of Pennsylvania v. Aichele , 757 F.3d 347, 368 (3d Cir. 2014).

7 Constitution Party of Pennsylvania v. Cortes , 116 F. Supp. 3d 486, 507 (E.D. Pa. 2015).

8 Constitution Party of Pennsylvania v. Cortes , 824 F.3d 386, 399 (3d Cir. 2016)5 violation. On June 17, 2016, the Aspiring Parties requested an injunction , directing that “ Defendant Pedro Cortes shall place the nominees of Plaintiffs Constitution Party of Pennsylvania, Green Party of Pennsylvania and Libertarian Party of Pennsylv ania on Pennsylvania’s November 8, 2016 general election ballot, ” 9 or, in the alternative, that the parties’ candidates shall be placed on the ballot if they submit appropriate paperwork “ on or before the August 1, 2016 deadline with valid signatures equal in number to the requirements imposed upon major party candidate s pursuant to 25 P.S. § 2872.1 . . ..” 10

The Commonwealth responded by proposing, based on a bill then pending before the Pennsylvania General Assembly

, 11 that the Aspiring Parties’ candidat es be placed on the ballot provided that they gather two and one

- half times as many signatures as major party candidates must gather. 12

9 App. 25.

10 App. 26.

11 See H. R . 342, 200th Gen. Assemb.

, § 2

, Reg. Sess. (Pa

. 2016). This bill has passed both houses of the Pennsylvania General Assembly and was “Referred to Rules” on June 27, 2016. As of the date of this opinion, no further action had
been taken. See http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.c fm?txtType=PDF&sessYr= 2015&sessInd=0&billBody=H&b illTyp=B&billNbr=0342&pn=3618

. Related legislation amending the Pennsylvania Election Code was recently introduced by the same Representative who had introduced
House Bill 342. See H.R. 444, 201st Gen. Assemb., Reg. Sess. (Pa. 2017).

12 App. 29

- 30.6 As for the county signature requirements, this bill provided
that

, for the office of Governor

, at least 5 ,000 signatures must be gathered to include at leas t 25 0 from at least 10 counties. ( In Pennsylvania, th ere are the 67 counties ). F or other state

wide offices

, this bill required between 1,250 and 2,500 signatures with at least 250 from at least 5 counties. 13

Between June 21 and 28, 2016, the District Court held
five off

- the

- record status conferences. At those status conferences, the Aspiring Parties suggested that the county

based signature

- gathering requirements in the Commonwealth’s proposed order were unconstituti onal vote

13 In this bill, t he offices of President of the United States and United States Senator require d 5 ,000 signatures without a
county

- based distribution requirement.7 dilution schemes in violation of the Fourteenth Amendment

. 14

B oth parties submitted letter briefs outlining their positions
on that issue.

On June 30, 2016, the District Court adopted the Commonwealth’s proposed order. The District Court did n ot find any facts

, n or did it explain its decision. The Aspiring Parties have appealed, arguing again that the county

- based signature

- gathering requirements in the District Court’s order
are unconstitutional.

14 This position may seem to contradict the Aspiring Parties’
request that their candidates be placed on the ballot if they submit papers with “ signatures equal in number to the requirements imposed upon major party candidate s.” App. 26. At oral argument, counsel explained that the proposed order was intended to require t he Aspiring Parties to match
the total number of signatures required for major parties but

not the county

- based distribution requirements. Oral Arg. Recording at 4:42

- 5:07

. The record does not reveal whether the District Court initially interpreted the A spiring Parties’ proposed order in this way. However, within a few days of submission of the proposed orders , the District Court held status conferences with the parties, and the Aspiring Parties submitted a letter brief opposing the county

- based signatur e

gathering requirements. Thus, we believe there was no waiver here; the District Court was informed of the Aspiring Parties’ views within an appropriate amount of time.8 II. Discussion 15

A. Standard of Review

Our rev iew of the constitutionality of the District Court’s injunction is plenary. 16

B. County

- Based Signature Requirements

The question of the constitutionality of county

- based signature

- gathering requirements has a long history . Over the course of three opini ons in the early 1960’s, the Supreme Court articulated the principle of “one person, one vote” contained in the Equal Protection Clause. 17 The essence of this principle is that each voter’s vote must be counted equally. Observing that the Fifteenth and Ni neteenth

15 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdic tion pursuant to 28 U.S.C. § 1291. While conceding jurisdiction under § 1331, the Aspiring Parties argue that the District Court did not have jurisdiction to enter the injunction on appeal here because it reached issues not properly before it. This argum ent lacks merit. The
District Court had found a constitutional violation and had jurisdiction to fashion a remedy. See Consumer Party v.

Davis , 778 F.2d 140, 146 (3d Cir. 1985) (observing that a district court has wide, although not infinite, discretion to fashion a remedial injunction).

16 Ne. Women’ s Ctr., Inc. v. McMonagle , 939 F.2d 57, 66 (3d Cir. 1991).

17 Reynolds v. Sims , 377 U.S. 533 (1964); Gray v. Sanders

, 372 U.S. 368 (1963); Baker v. Carr , 369 U.S. 186 (1962).9 Amendments protect the rights of people of different races and sexes to vote, the Supreme Court reasoned:

If a State in a statewide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro

vo te, none could successfully contend that that
discrimination was allowable. How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area
or because he lives in the sm allest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote

— whatever their race, whatever their sex, whatever their occupation, whatever their
inco me, and wherever their home may be in that geographical unit. This is required by the Equal
Protection Clause of the Fourteenth
Amendment. 18

Thereafter, in Moore v. Ogilvie , the Supreme Court applied this principle to requirements that candidates who
wis hed to have their names placed on the ballot gather a minimum number of signatures from a specified number of
counties in a state. 19 In Moore , Illinois required that a
candidate

, who wished to appear on the ballot

, gather signatures from at least 25,000 qu alified voters, including at least 200 qualified voters from each of at least 50 counties in

18 Gray , 372 U.S. at 379 (citation o mitted)

. 19 394 U.S. 814 (1969).10 the state. 20 At the time, “93.4% of the State’ s registered
voters reside [d] in the 49 most po pulous counties, and only 6.6% [we re ] resident in the remaining 53 cou nties. ” 21

Because “ the electorate in 49 of the counties which contain 93.4% of the registered voters [might] not form a new political party and place its candidates on the ballot ,” but

“ 25,000 of the remaining 6.6% of registered voters properly
distributed among the 53 remaining counties [might] form a
new part y to elect candidates to office [

, ] ” this requirement “discriminate[d] against the residents of the populous
counties of the State in favor of rural sections ” in violation of the “one person, one vote” principle. 22

Subsequently, Anderson v. Celebrezze set out a process for resolving constitutional challenges to state election laws. 23

Under Anderson

, a court

must first consider the character and magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the

20 Id. at 815.

21 Id. at 816.

22 Id. at 819. While the requirements at issue involved gathering signatures of voters rather than casting votes, the Court held that “[a]ll procedures used by a State as an integral part of the e lection process must pass muster against the charges of discrimination or of abridgment of the right to
vote.” Id. at 818.

23 460 U.S. 780 (1983).11 burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to
which those interests make it ne cessary to burden the plaintiff’ s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. 24

While Anderson specifically involved the right to free association under the First Amendment, this Court has applied the Anderson analysis to Equal Protection challenges
as well. 25

Both be fore and after Anderson , county

- based signature

- gathering requirements have fared poorly in the
courts. At least three different circuit courts , seven district courts, and one st ate supreme court have all held in reported
decisions that a state’s county

- b ased signature

- gathering

24 Id. at 789

. 25 Belitskus v. Pizzingrilli , 343 F.3d 632, 643 (3d Cir. 2003) ; accord Blomquist v. Thomson , 739 F.2d 525, 527 (10th Cir. 1984)

.12 requirements were unconstitutional. 26 The essential difficulty that a state faces in justifying a county

- based signature

-

26 See Am. Civil Liberties Union of Nevada v. Lomax , 471 F.3d 1010, 1012, 1020 (9th Cir. 2006) (striking down a requirement of signatures from 10% of voters in 13 of Nevada’s 17 counties) ; Idaho Coal. United for Bears v.

Cen arrusa , 342 F.3d 1073, 1075 & n.3, 1077 (9th Cir. 2003) (6% of voters in 22 of Idaho’s 44 counties) ; Blomquist v.
Thomson , 739 F.2d 525, 528 (10th Cir. 1984) (8,000 voters from 2 of Wyoming’s 23 counties) ; Communist Party of Illinois v. State Bd. of Electi ons for State of Ill. , 518 F.2d 517, 518, 521 (7th Cir. 1975) (25,000 voters, of which not more than 13,000 could be from any one of Illinois’s 102 counties) ; Montana Pub. Interest Research Grp. v. Johnson , 361 F. Supp. 2d 1222, 1224

- 25, 1229

- 30 (D. Mont. 2005) (5% of voters in at least half of Montana’s 56 counties) ; Libertarian Party of Nebraska v. Beermann , 598 F. Supp. 57, 60 (D. Neb. 1984) (1% of voters in 19 of Nebraska’s 93 counties) ; McCarthy v. Garrahy , 460 F. Supp. 1042, 1050 (D.R.I. 1978) (25 sig natures in 5 of Rhode Island’s 5 counties) ; Baird v.

Davoren , 346 F. Supp. 515, 522 (D. Mass. 1972) (3% of voters in the last gubernatorial election, of which no more
than one

- third from one of Massachusetts’s 14 counties) ; Socialist Labor Party v. Rhodes

, 318 F. Supp. 1262 , 1272 (S.D. Ohio 1970) (200 voters from 30 of Ohio’s 88 counties)

, aff’d sub nom. Sweetenham v. Gilligan , 409 U.S. 942 (1972); Socialist Workers Party v. Rockefeller , 314 F. Supp. 984,
989

- 991 (S.D.N.Y.) (50 voters from 62 of New York’s 62 counties)

, aff’ d , 400 U.S. 806 (1970); Socialist Workers Party

v. Hare , 304 F. Supp. 534, 53 5

- 3 6 (E.D. Mich. 1969) (100 voters from 10 of Michigan’s 83 counties) ; Gallivan v.13 gathering requirement under Moore and Anderson is that, in the final step of Anderson

— “ consider [ing] the exten t to which [the state’s asserted] interests make it ne cessary to burden the plaintiff’ s rights ” 27

— alternatives to county

- based requirements are readily available. Typically, the state’s justification for county

- based signature

- gathering requirements is to keep frivolous candidates off the ballot by requiring that a candidate show some support across a significant portion of the state. 28 However, signature

gathering requirements based on geographical units other than counties may serve that interest just as well. For example, congressional districts must have populations that are “as nearly as practicable” equal in population; 29 thus, requiring a minimum number of signatures to be gathered from different congressional districts serves the interest of requirin g candidates to show support across different geographical areas but does not dilute anyone’s voting power. 30 Hence, it

Walker , 54 P.3d 1069, 1095

- 96 (Utah 2002) (10% of voters
from 20 of Utah’s 29 counties)

. 27 Anderson

, 460 U.S. at 789

. 28 See, e.g.

, Moore , 394 U.S. at 818 ( considering the argument
that “this law was designed to require statewide support for launching a new political party rather tha n support from a few
localities ”).

29 Kirkpatrick v. Preisler , 394 U.S. 526, 530

- 31 (1969).

30 Numerous courts have approved of such an approach. See

, e.g. , Angle v. Miller , 673 F.3d 1122, 1129 (9th Cir. 2012); Libertarian Party v. Bond , 764 F.2d 538, 544 (8th Cir. 1985); Libertarian Party of Virginia v. Davis , 766 F.2d 865, 868 (4th Cir. 1985) (abrogated on other grounds as recognized in Lux
v. Judd , 651 F.3d 396 (4th Cir. 2011)).14 is rarely, if ever, necessary to impose county

- based s ignature

gathering requirements that significantly burden voting rights.

However

, not all county

- based signature

- gathering requirements are sufficiently stringent to cause constitutional

concern. As courts

, beginning with a district court in Zautra
v. Miller

, have held, c ounty

- based signature

- gathering requirements are constitutional when such requirements hav e no “real or appreciable impact upon the franchise . . ..” 31 In

Zautra , Utah required that “new political associations .

. . secure the signatures of 500 registered voters, including at least ten signatures of registered voters from each of ten counties, in order to qualify as a political party with the accompanying right to place candidates on the ballot.” 32 Crucial to the finding that there was no appreciable impact

was the fact that the number of signatures required from each county was only ten. Ten signatures from ten counties was small by any measure; for example, the district court observed that one hundred geographically distributed signatures in Utah amounted to only about one

- ninth as many signatures per one million pop ulation as did the comparable requirement in Moore

. 33 The ten

- county requirement was also a lesser burden than the comparable requirement in

Moore , and fulfilling the county

- based signature

- gathering requirement was not the only way to place a candidate’s name on the ballot in Utah (although it had been in Illinois in

Moore ). 34 Because of these considerations, Zautra held that the requirement was constitutional because it exerted no

31 348 F. Supp. 847, 850 (D. Utah 1972)

. 32 Id. at 848.

33 Id. at 849 & n.3.

34 Id. at 849

- 50.15 appreciable impact on the franchise. While Zautra was decided before Ander son , it is consistent with the Anderson analysis: I f there is no appreciable impact on the franchise, then there is no injury to constitutional rights that the court must balance against a state’s interests. The state’s interests simply prevail.

Zautra illustrates the importance of considering the
real

- world impact of voting rights restrictions. This Court has also emphasized this point, noting that under Anderson

,

the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation
burdens First a nd Fourteenth Amendment rights. W hen thos e rights are subjected to

severe restri ctions, the regulation must be narrowly drawn to advance a state int erest of compelling importance. However, when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First
and Fourteen th Amendment rights of voters, the
State’ s important regulatory interests are generally sufficient to justify the restrictions. 35

Because thi s inquiry is concerned with the extent to which a challenged regulation actually burdens constitutional rights, this inquiry is “fact intensive.” 36 It requires on

- the

-

35 Belitskus

, 343 F.3d at 643 (inter nal quotation marks, brackets, and citations omitted).

36 Patriot Party of Alleg heny Cty. v. Allegheny Cty. Dep’ t of
Elections , 95 F.3d 253, 258 (3d Cir. 1996)

.16 record analysis of the facts pertaining to the particular restriction under scrutiny. Su ch facts include the number of counties in the state at issue, the distribution of voters throughout those counties, and any other indications of the magnitude of vote dilution that will take place under the challenged restriction. A requirement that allo ws a minority of the population to thwart the majority’s will, as did the requirement in Moore

, 37 certainly has an appreciable impact, but even lesser requirements may have an appreciable impact depending on the factual circumstances surrounding the require ment s

.

C. The District Court’s Injunction

Under these standards, the District Court’s order must be vacated. We recognize that the District Court was working under significant time pressure; this Court issued its
affirmance in June 2016 when the ca mpaig n season had already begun . As a result, the District Court needed to work as quickly as possible in order to provide fair relief to the parties. Nonetheless, the District Court did not make any factual findings or provide any explanation on the record o f the factors it considered in determining that its injunction was appropriate. Because resolving vote dilution challenges is a fact intensive process and because county

- based signature

gathering requirements have been held to be constitutional only when they have been shown to have no appreciable

37 If the 6.6% of the registered voters who lived in the least

populous counties in Illinois with held their signatures, they could block candidates from being placed on the ballot. See

Moore , 394 U.S. at 819.17 impact on the franchise, the lack of fact

- finding requires that

we vacate the District Court’s order.

The District Court may determine to enter the same order again

— or to issue an other injunction containing

cou nty

- based signature

- gathering requirements . However,
the court must first conclude, after considering the factors and finding facts, that the restrictions are constitutional under
Anderson . Given the justification for these requirements that
the Commonwe alth has presented, 38 the District Court can impose the county

- based signature

- gathering requirements if it concludes that the requirements would have no appreciable impact on voting rights. 39 T he court did not so conclude here

, and we have no basis in the record to reach such a conclusion independently.

38 The Commonwealth has suggested in its brief that the
county

- based signature

- gathering requirements are necessary for a minor party to show “s ome modicum of support” before a minor party candidate can be placed on the ballot

. 39 The Commonwealth observes that Pennsylvania state courts, citing Zautra , have held that the county

- based signature

- gathering requirements for major

- party candidates

are constitutional because they have no appreciable impact on
the franchise. See Petition of Berg

, 713 A.2d 1106 , 1109 (Pa. 1998) ; Cavanaugh v. Schaeffer , 444 A.2d 1308 , 1311

- 12 (Pa.
C om mw

. Ct. 1982) . While the Commonwealth is correct that
the state courts have so held, the requirements here involve
two and one

- half times as many signatures. Thus, even if the impact of the lesser requirements for major

- party candidates is negligible

— an issue not before this Court and one about which we express no opinion

— th e greater requirements here still must be analyzed separately.18 III. Conclusion

For the foregoing reasons, we will vacate the District Court’s judgment and remand for further proceedings consistent with this opinion.